One of the most difficult decisions an employee may ever face occurs when an unethical, unsafe or unlawful condition exists at the company, and the employee has to decide whether or not to notify a supervisor, or other company authority. Making complaints at work, or blowing the whistle, if you will, can have serious consequences. The above video discusses this in great detail (with a bit of humor).

The employee will fears their boss will retaliate. They might get fired, passed over for a promotion, written-up, demoted, or receive a pay reduction. Our office has seen numerous cases where an employee reports a violation, and then, for the first time ever, suddenly gets hit with a bad performance evaluation.

In many cases, when an employer retaliates against a worker because the worker complained about an unsafe or unlawful condition, the company has broken the law. We have an entire sections of our website dedicated to retaliation and whistleblowing.

However, but there are simple steps that the employee can take, that if done correctly, could avert retaliation, bad feelings, and legal action altogether. In other words, when it comes to complaining at work, some approaches are better than others.

The above video discusses seven tips to avoid being retaliated against when lodging complaints. This page was written to briefly discuss some of those steps.

1. Don’t Threaten

If you are reporting an unsafe condition, keep in mind that the goal is to get the violation fixed. Don’t threaten legal action or launching a slew of legal buzzwords at the company. You run the risk of escalating the situation. Furthermore, if the case goes to court at a later date, the company can potentially paint the employee as a troublemaker more intent on levelling threats than solving an actual problem.

2. Focus on Illegal Activities, Be Specific, Be Helpful

When notifying your manger about a potential violation, focus on the things that you believe are unlawful. In many cases, our office has counseled clients who have sent a long rambling emails to the company that complains about a wide range of problems, perhaps some of which are unlawful.

This usually doesn’t help the employee when it comes to getting the problem solved. Remember, if you’re complaining about a potentially unlawful problem at work, your goal should be to get the problem fixed. Keep your complaint short, explain why you believe it’s unlawful, and try to recommend practical solutions if possible,

3. If Possible, Follow Procedures Outlined in the Employee Handbook

In many cases, a company will provide the guidelines for reporting a violation in the employee handbook. If possible, follow the company’s procedure. When faced with a retaliation claim in a court of law, companies will often claim that they knew nothing of the violation. It’s a favorite tactic of defense lawyers in these situations to say “the company never received the complaint.”

Be sure to follow the proper procedure and get the complaint to the right person. If you don’t have an employee handbook to follow, use your best judgment when getting the complaint to the right person.

4. Put it in Writing, But Check Your Wording

It’s important that you not only complain to the right person, but complain in writing. Often times, company witnesses will take the stand and won’t remember being told of a violation. Without proof of the claim, it’s impossible to prove whether the witness is being forgetful or just lying. However, it becomes more difficult for the company to pretend it never received a complaint when there is an email proving otherwise.

So, put it in writing, but keep a cool head. Make sure the tone and language of your complaint isn’t aggressive or threatening. If for instance you are reporting a violation of overtime pay, rather than saying “The company isn’t complying with the wage laws! I’m not getting all of my overtime!” You might say, “I don’t think my overtime pay is being calculated correctly. We should look into what the labor code says. If I’m right, the company needs to fix this.”

If you Have Questions, Contact an Attorney

If you’ve experienced retaliation, or have questions about a potentially unlawful work situation, reach out to an employment attorney like our firm. In some cases, taking a company to court is the only way to get a violation fixed. Workers who experience retaliation are in many cases entitled to monetary compensation. Be sure to check out our video on preventing workplace retaliation. If you have further questions, contact our office to find out how we can help.

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Whether you’re in management, human resources, own a small company, or oversee a workforce of thousands, you should have some basic understanding of the employment laws that protect your workers. You already know that lawsuits are scary. With a bit of foresight and understanding, legal problems can be avoided.

Employment attorney Branigan Robertson has assembled a short video discussing some key issues that will be of interest to anyone who manages workers. Having practiced employment law for the past six years, Branigan typically represents workers. But working with aggrieved employees has given Branigan valuable insights that defense-side employment lawyers don’t typically develop. In this video, Branigan takes what he’s learned from employees and shares his wisdom with those on the management side of the equation. And he does so with minimum legal jargon.

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One of the key concepts employers can take from this video, before even delving into the legal concepts, is that most employees don’t sue because the law was broken, but rather because they feel that they were treated like garbage. Understanding the importance of treating employees with a basic level of respect and decency will help companies avoid costly lawsuits even in cases where the law may have inadvertently been broken.

Issues discussed include such topics as sales agreements—one of the most frequent triggers of employee lawsuits. Companies often run into trouble when they tinker with commission agreements affecting their sales team in the middle of a sales cycle or in the middle of a negotiation.

Or perhaps you have questions about wrongful termination. After all, California (and many other states) are “at-will.” When exactly does an employer cross the line when firing an employee? If you’re interested in learning more about the specific types of wrongful termination, you’ll want to watch this video.

Maybe you’re interested in questions of what constitutes reasonable accommodations for disabled employees. This area of employment law is particularly nuanced since it deals with more than just hiring and firing issues.

Other topics discussed in the video include:

Whether or not a company can discriminate against employees of a certain age (the answer might surprise you)

The difference between discrimination and harassment

The Family Medical Leave Act

Worker’s Compensation

Other Issues

If you’ve ever had questions about these or other topics, you’ll want to watch Branigan’s video. It’s an excellent opportunity for anyone in the management field. After all, you won’t find many videos produced by plaintiff-side employment attorneys tailored toward companies. You certainly won’t find this type of video presented in such an informal and easy-to-understand format. Have a watch, enjoy, and if you have any questions contact our office for further information.

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These lawsuits are filed because the building doesn’t have a wheelchair ramp, or maybe its disabled parking space isn’t to exact specifications. Whatever the reason, this type of lawsuit can result in expensive fines, and require costly building retrofitting.

But while these types of lawsuits have gained plenty of attention, news organizations are now waking up to a new type of disability lawsuit that’s occurring with increasing frequency.These lawsuits involve ADA accessibility issues relating to a company’s website. And if businesses don’t pay attention to these new lawsuits, they could find themselves caught up in expensive litigation, and hit with expensive fines.

Making things more difficult for business owners, the Federal Government has yet to release a long-anticipated list of guidelines for how business owners can make their websites ADA compliant, leaving companies scrambling to figure out the best way forward.

This article was written to briefly discuss the topic of ADA compliance as it relates to websites, as well as some of the guidelines that are available to help businesses become compliant. As always, if you have concerns that your company’s websites aren’t compliant, or you are facing legal action, seek the advice of a good lawyer.

ADA Challenges in the Era of the Website

According to a February 2018 article published by the website ClassAction.org, there are as many as three ADA lawsuits being filed daily relating to accessibility issues on company websites. In some of these cases, multiple businesses are being sued by the same plaintiffs.

In March, CBS Money Watchpublished an article explaining that corporate giants Nike, Burger King, Hershey, Lord & Taylor and Pandora were all being sued due to online accessibility issues. The article noted that back in 2010, the US Department of Justice, under the guidance of then President Barack Obama, announced it would soon release website accessibility guidelines so that companies could comply with ADA rules.

However, by 2016, near the completion of Obama’s second term, the updates still hadn’t arrived. Since President Donald Trump has taken over, there is no indication that these guidelines will be forth coming any time soon. And as attorney Minh Vu explained to CBS, figuring out how to become compliant can be a challenge for many companies.

“You cannot wave a magic wand to make your website accessible,” Vu said. “There aren’t a lot of people who know how to do it correctly.”

What the ADA says About Websites

The Americans with Disability Act states the Following:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (leases to) or operates a place of public accommodation.”

It’s important to note that Federal Courts in the First, Second and Seventh Circuits have found that the ADA applies to Websites.

In May of 2018, a Los Angeles Superior Court judge ruled in favor of a plaintiff who sued a restaurant called the Whisper Lounge because of ADA accessibility issues on its website. In that case, the plaintiff alleged she was unable to read a menu on the restaurant’s website due to her vision impairment, adding that a link to a PDF version of the menu led to an error message. She further alleged that a graphic image of the menu was unreadable, and the website contained graphics that were not labeled with descriptive tags.

The court ordered the restaurant to pay the defendant statutory damages totaling $4,000, and comply with requirements of WCAG 2.0 AA, which is a series of guidelines developed by a working group of the Web Accessibility Initiative.

Web Accessibility Initiative

The Web Accessibility Initiative is an effort of the World Wide Web Consortium (W3C), which seeks to improve the accessibility of the internet for persons with disabilities. It is comprised of various stakeholders, including special interest and disability groups, as well as accessibility research organizations. Initiative workgroups and task forces research and develop guidelines in order to improve internet accessibility. They also develop support materials to help folks understand Web accessibility.

The fruits of these workgroup’s efforts include the guidelines for making websites more accessible to disabled people, the implementation of which could potentially limit a company’s exposure to ADA lawsuits.

While the defendant in the case mentioned in the previous section argued that the WCAG guidelines aren’t legally binding, the court noted that the complaint did not seek to hold the defendant liable for violating their provisions. Rather, the plaintiff referenced the guidelines and sought to compel defendant to “take the steps necessary to make whisperloungela.com readily accessible and usable by visually-impaired individuals.”

For more information on the Web Accessibility Initiative as well as WCAG guidelines, visit the group’s website.

What this Means for Companies Who Operate Websites

If you operate a website as part of your business, now might be a good time to consider your site’s accessibility issues. Guidelines included in WCAG 2.0 include a range of suggestions for making content more easily accessible to disabled persons. For instance, audio-only content can be enhanced by presenting the audio information along with a text document edited to match the dialogue.

Other guidelines discuss:

The speed with which content is presented.

How a user might adjust the speed with which content is presented

Whether rapidly flashing content can cause seizures

How the headings or labels on each page describe the intended topic or purpose

These are just a tiny sampling of the types of issues businesses might have to consider in order to limit their liability.

If You’re Unsure About Website Compliance Issues, Consult an Attorney

If you’re a business owner who’s unsure of how to make your website ADA compliant, this can be a confusing time. The federal government has been slow to develop guidelines for businesses to follow, leaving the information gap to be filled by other groups. Meanwhile, the onslaught of lawsuits continues.

If you have questions, a good attorney can help you understand the existing law, and develop best practices so that you can comply with the law. If you face legal challenges that threaten your business, a good lawyer will be vital to helping you navigate the legal system’s many challenges.

Many people are aware that when they sign an arbitration agreement, they’re signing away some of their power. Arbitration contracts are used in any number of situations, and are often signed by new employees when they start a job. While some legal experts drone on about the benefits of arbitration to more efficiently settle employment disputes, and provide relief to an overburdened legal system, employees who’ve had legitimate legal claims blocked by arbitration know the process favors powerful employers and corporations.

By signing an arbitration contract, employees agree to settle any potential lawsuits against their employer outside of a court room in a special hearing presided over by a professional arbitrator. Employers typically hire the arbitrator (often a retired judge) who will consider the facts of the case and issue a ruling. In addition to the obvious conflict of interest of an arbitrator working on the company’s dime, the ruling is often final, and the employee doesn’t have the opportunity to appeal the decision. Most employment lawyers who represent workers agree that arbitration favors the company, not the employee.

So, if an employee signs an arbitration agreement, is he or she automatically backed into a corner when a discrimination, harassmentor wage issuearises? As a case decided by the Court of Appeal of the State of California, Second District demonstrates, the answer is not necessarily. Put simply, your signature on an arbitration agreement isn’t always the final word on the matter.

This article was written to generally discuss the issue of employment arbitration, as well a case in which a car wash employee was allowed to continue with his lawsuit in a court of law despite signing an arbitration agreement. We’ve written about recent arbitration rulings before (this one involving an arbitration decision by the U.S. Supreme Court).

If you have questions about an arbitration agreement you signed for your employer, or some other employment law question, contact our officefor answers.

Carlos Juarez worked for the Wash Depot beginning in July 2012. His job duties included washing, drying and detailing cars. In December 2016, he filed suit against the company alleging failure to pay earned wages, minimum wages, and overtimecompensation, among other violations.

Wash Depot attempted to compel arbitration based on the company’s employee handbook, which Juarez acknowledged receiving. The handbook featured an agreement that required disputes to be settled in an arbitration setting. The handbook also included a waiver of employee rights under the state’s Private Attorney General Act (PAGA), which stated that Juarez would have no right or authority for any dispute to be heard as a private attorney general action. However, significant differences in the wording of this waiver existed between the English and Spanish versions of the employee manual.

After Juarez filed suit against Wash Depot, the company attempted to have the case removed to arbitration, per the handbook agreement. Juarez resisted, and the court denied the company’s motion. In its ruling, the court stated that the differences between the Spanish and English versions of the handbook were “profound.” The court further relied on a section of California’s Civil Code regarding contracts, which states:

“In cases of uncertainty not removed by the preceding rules, the language of the contract should be interpreted most strongly against the party who caused the uncertainty to exist.”

Wash Depot appealed the ruling to the California Court of Appeals for the Second District, but the higher court also denied the company’s request to compel arbitration. Referring to the differences in Wash Co.’s English and Spanish manuals, the court wrote:

“At best the difference in the severability clauses in the English-language and Spanish-language versions of the handbook is negligent; at worse, it is deceptive.”

What This Case Can Mean for Workers

You might have signed an arbitration agreement with an employer years ago, or may be faced with signing one now. As the previous section of this article hopefully makes clear, even employers, with their fancy lawyers, can make mistakes.

If you feel your employer has acted unlawfully and is attempting to compel you to settle your claim via arbitration, be sure you discuss your case with a good employment lawyer. If the company made a mistake in drafting its arbitration agreement, this could benefit you.

Arbitration in the Media

In 2015, the New York Timeswrote a series of articles on the ever-increasing number of companies using arbitration to ban class action lawsuits. Entitled, “Beware the Fine Print,” one of the articles mentioned several specific class actions blocked from the courts. These included an executive at Godman Sachs who attempted to sue on behalf of bankers claiming sexual discrimination, as well as African American employees at Taco Bell restaurants who claimed they were denied promotions, and subject to offensive comments. The article further noted:

Some Contracts Are Unconscionable

Sometimes a court won’t honor an arbitration agreement or other employment contract because the terms of the contract are unconscionable. In legal terms, unconscionability is defined as something that is overly harsh, unduly oppressive or unfairly one-sided in favor of the person with superior bargaining power. The law generally views the concept of unconscionable contracts through two filters: the first, is known as procedural unconscionability, and the second is substantive unconscionability. The term procedural generally refers to the process under which the contract is negotiated, and substantive refers to the actual terms of the contract.

“If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.”

If you believe an arbitration contract you signed might be unconscionable, now might be the time to contact a qualified employment lawyer to discuss your situation.

Before You Sign, Have A Lawyer Review (if possible)

If an employer hands you a contract to sign, it might be in your best interest to have an employment attorney look the contract over to make sure everything is on the level. If you’re just starting a new job, you might want to know if your future employer is trying to corner you with unconscionable terms.

Likewise, if you work for a company where you’ve already signed an arbitration agreement, and your company is engaged in unlawful behavior such as wage or overtime violations, a good employment lawyer might be able to find any errors in the contract and help you fight for a better settlement in a court of law.

If you have questions about anything discussed on this page or some other area of employment law, schedule a consultation with the office of Branigan Robertson to find out how we can help.

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You don’t have to be a legal expert to know that non-compete clauses are largely unenforceable in California. The law nullifying this type of clause, in which an employer tries to prevent terminated employees from working for competing businesses, has been on the books for years. And if you’re an advocate of employee rights, the law is a bright spot in California’s Business and Professions Code.

Over the years, California employers have tried to test the strength of California’s non-compete law, with little success. However, in July of 2018, an employee turned the tables and sought to test the law’s strength in a case that didn’t specifically involve a non-compete clause.

The United States Court of Appeals for the Ninth District ruled on the case, which involved a doctor whose former employer wanted him to sign a non-rehire agreement. The federal court looked to California’s non-compete law to rule in favor of the doctor. Continue reading to learn more about the court’s decision, non-compete clauses and related areas of employment law.

If you have questions about your own employment situation, don’t hesitate to contact our officeto learn how we can help.

California’s Non-Compete Law

“Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

Golden vs. California Emergency Physicians Medical Group

Physician Donald Golden was an emergency room surgeon employed by California Emergency Physicians Medical Group (CEP) at its Seton Coastside Medical Facility. He was fired in May 2008, and filed a discrimination suit against the company.

The case ended up in Federal District Court in 2010, but before the trial had a chance to begin, CEP offered to settle the case. In return for a large settlement, the company wanted Golden to waive any rights to future employment with the company.

This meant that Dr. Golden wouldn’t be rehired at any facility owned by the company, as well as any facility CEP might own in the future. Dr. Golden refused to sign the printed agreement. The court ruled that Dr. Golden should be compelled to sign the agreement, but the doctor appealed the decision, and the case moved to the appellate court.

During his appeal, Dr. Golden argued that the non-rehire provision of the settlement violated California’s law against non-compete clauses.

In its ruling, the Federal Court noted that California’s no compete law has been broadly interpreted over the years. The court further argued that the lower court had abused its discretion in narrowly interpreting the law.

The appellate court argued that the simple question at hand was whether or not the settlement agreement in Dr. Golden’s case restrained anyone from engaging in a lawful profession, trade, or business of any kind.

“We have no reason to believe that the State has drawn section 16600 simply to prohibit ‘covenants not to compete’ and not also other contractual restraints on professional practice,’” the court wrote in its decision.

Accordingly, the appellate court reversed the lower court’s judgment and remanded the case “for further proceedings not inconsistent with this opinion.”

What This Means for California Workers

This case once again reinforces the strength of California’s non-compete law and actually demonstrates that the law goes beyond non-compete clauses in protecting an employee’s right to earn a living.

To be clear, this doesn’t mean every employee who’s been unlawfully compelled to signed a non-compete clause has a shot at a million-dollar judgment. But it does mean that non-compete clauses, with few exceptions, are unenforceable.

Unfortunately, this doesn’t stop employers from asking workers to sign these agreements. In 2016, the Office of Economic Policy, a division of the US Treasury Department issued a report on the prevalence of non-compete contracts. According to the report, California workers were found to have signed these agreements at 19 percent higher than the national average. Acknowledging that such agreements are largely unenforceable in court, the report noted that the trend suggests “firms may be relying on a lack of worker knowledge.”

Employers and employees often sign non-compete clauses that include trade secret language. Employers are very much allowed to prohibit the theft/taking of valid trade secrets, and employers frequently sue former employees who steal customer lists or valuable and secretive manufacturing plans. When you have a mixed clause like this, contact a lawyer especially if you think your employer may try to enforce the provision.

When an Employee Blows the Whistle on Non-Compete Contracts

If an employee realizes that a company he or she works for is violating the law by requiring other workers to sign non-compete contracts, and that employee notifies the authorities (a state agency, the District Attorney, the police), it’s possible the company will retaliate against that employee (fire, demote, harass, etc.). It’s important to note that the employee in this situation is a whistleblower, and whistleblowing activities are protected by law. A worker who experiences retaliation as the result of whistleblowing activities could be entitled to monetary damages. For more information on whistleblowing, contact our office or visit our whistleblowing page.

When to Contact an Employment Attorney

If you work in California, and have been asked to sign a non-compete clause, chances are good your employer has violated state law. It could be worth your time and effort to discuss your situation with an employment attorney. Additionally, if you’ve received notice of legal action from a former employer stating you have violated the company’s non-compete clause, you’ll want to contact an attorney right away.

If you have questions about anything discussed in this article, or another employment law related question, contract the office of Branigan Robertson to learn more about your rights under the law.

Are you an employee who’s ever wondered about the value of the minor tasks you do at work? Perhaps you’re an hourly employee who frequently finds yourself doing seemingly insignificant chores after clocking out. This might include locking doors, setting alarms, carrying trash to an outside dumpster and so forth.

While a few minor assignments done after one shift might not seem significant, these moments spent in service of the company add up over a period of days, weeks and years. The California Supreme Court took up the question of this type of work after a Starbucks manager named Douglas Troester, along with a group of employees, sued the company claiming they were denied payment for after-shift work. The court specifically looked the legal doctrine of “de minimis” work, a Latin term referring to matters too small for the law to concern itself with. In a boost for worker’s rights, the court sided with the employees.

This article was written to discuss the court’s decision, and how it might apply to workers statewide. If you feel you’ve been denied your rightful wages, or have been otherwise treated unlawfully by your employer, contact attorney Branigan Robertsonto schedule a consultation.

Douglas Troester v Starbucks Corporation, A Brief Recap

Starbuck’s store manager Doug Troester, along with several non-managerial employees, filed suit against the coffee giant Starbucks in August of 2012 in Los Angeles Superior Court. Troester’s complaint alleged that between mid 2009 and October 2010, he and his co-plaintiffs performed tasks after closing time for which they weren’t paid.

Troester was able to provide evidence of his activities at closing time thanks to Starbuck’s tracking software, which required him to clock out at the end of every shift. After clocking out, Troester would initiate a “close out” procedure on a separate terminal in the store’s back office. This procedure would transmit daily sales information to Starbuck’s corporate headquarters. After this, Troester would set the store’s alarm, exit the building and lock the door. On occasion, and in line with Starbuck’s company policy, he would walk other employees to their car for safety. He also submitted evidence that he occasionally let employees back inside the store to retrieve items they’d left behind. There were also times when the store had to be unlocked to retrieve patio furniture that had been left outside. It was determined that during this period, Troester’s unpaid wages added up to 12 hours and 50 minutes, which at the current rate of pay came out to $102.67.

Starbucks removed the case to federal court, and the court ruled in favor of the company. While the court agreed that Troester did in fact work hours for which he wasn’t paid, the court relied on a legal doctrine known as de minimis — a matter too small for the law to concern itself with. In other words, $102.67 wasn’t worth the court’s consideration.

State Supreme Court Takes the Case, Rules in Favor of Workers

The State Supreme Court, which rendered its 7-0 decision in July 2018, based its ruling on provisions of the Labor Codeas well as the state’s 18 wage orders. In considering these two factors, Justice Goodwin Liu noted that the law’s purpose is “protection of employees — particularly given the extent of legislative concern about working conditions, wages and hours when the Legislature enacted key portions of the Labor Code.”

In examining Wage Order number 5, which encompasses the housekeeping industry, and includes Starbucks, the court noted that work hours are defined as the time during which the employer knew or should have known the employee was working on its behalf.

Citing the Wage Order’s wording which requires employees to be compensated for all time worked, the court concluded that the de minimis doctrine, “has no application under the circumstances presented.”

Some of Liu’s strongest wording focused on the idea that off-the-clock work was viewed as a trifle at all:

“As the facts here demonstrate, a few extra minutes of work each day can add up. According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to $102.67 at a wage of $8 per hour. That’s enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.”

The court’s ruling stated that an employer may not evade its obligation to pay employees who work off the clock on a regular basis by “invoking the de minimis doctrine.”

What this Means for Workers

For California employees who have worked off the clock at regular intervals for an extended period of time, this ruling could potentially mean a chunk of back pay is owed them. While Federal courts are empowered to rely on de minimis doctrine in similar matters, in California, the Supreme Court has made it clear this doctrine doesn’t fly. Larger companies that encourage off clock work among many employees could potentially be exposed to liability via class action law suits.

At the very least, this is a ruling that all hourly employees should be aware of when calculating their weekly pay. While it’s not worth the strain and effort of filing a complaint over a couple minutes worked after shift, it might be worth discussing the situation with your employer, particularly if it happens with any regularity.

If You Have Questions About Wages, Contact an Employment Attorney

If you’ve read this article and wonder if perhaps your employer has failed to pay you your rightful wages, it’s important to remember that there are a number of different situations in which an employer might deny a worker his or her proper wages. Some of these might relate to discrimination, while others might involve blatant greed. An employment attorney can help you figure out which laws may have been violated. But it’s important to remember that the clock starts ticking the moment an employer violates the law. You usually have a limited amount of time to file a complaint. If you have questions, it could be well worth your time and effort to discuss your situation with a professional who understand the tricks that companies pull to deny workers their rightful compensation. Contact the office of Branigan Robertsonto discuss your situation and find out how he can help.

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